Self-Respect Marriages Don't Require Public Solemnisation Or Declaration : Supreme Court Overrules Madras HC Judgment

Upholding the fundamental right of a person to choose a life partner, the Supreme Court on Monday (August 28) overruled a Madras High Court judgment which held that the marriages performed in the offices of the Advocates are not valid as per the Hindu Marriage Act 1955.

The case before the Supreme Court was based on the self-marriage system as per Section 7A, which was inserted in the Hindu Marriage Act by a Tamil Nadu Amendment. According to this Section, two Hindus can marry without following rituals or without solemnization by a priest by declaring marriage in the presence of their friends or relatives or other persons.

In 2014, a division bench of the Madras High Court in S. Balakrishnan Pandiyan v Inspector of Police held that marriages performed by the advocates are not valid and that Suyammariyathai marriage (self-respect marriage) cannot be solemnised in secrecy. Following this ruling, on May 5, 2023, the Madras High Court in Ilavarsan v The Superintendent of Police and Others refused to rely upon a self-respect marriage certificate issued by an advocate and dismissed a habeas corpus petition filed by a man who alleged that his partner was under illegal detention of her parents. Not only that, the High Court also directed that the Bar Council should initiate disciplinary action against advocates who issue such "fake marriage certificates". Aggrieved by this judgment, the petitioner approached the Supreme Court.

Considering the special leave petition, a bench comprising Justices S Ravindra Bhat and Aravind Kumar disagreed with the view expressed in Balakrishnan Pandiyan which was followed in Ilavarasan.

For context, Section 7A of the Hindu Marriage Act (as applicable in Tamil Nadu) is extracted as follows :

“Section 7-A: Special Provision regarding suyammariyathai and seerthiruththa marriages

(1)This section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons--

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife, or as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali."

The Supreme Court noted at the outset that Section 7A was upheld by the Top Court in Nagalingam v Shivgami(2001) 7 SCC 487. It further observed that the view in Pandiyan was based on an assumption that every marriage requires a public solemnisation or declaration.

The Court observed that the couples intending to marry may refrain from making a public declaration due to various reasons, such as familial opposition or fear for their safety. In such cases, enforcing a public declaration could put lives at risk and potentially result in forced separation.

"The view expressed by the Madras High Court in Balakrishnan Pandiyan is erroneous. It is premised on the assumption that each marriage requires a public solemnization or declaration. Such a view is rather simplistic because often due to parental pressure, couples intending to enter into matrimony may not enter into it for the reason of such opposition, hold or give such public declaration, as doing so would imperil their lives and could very likely result to threat of bodily integrity, or forcible or coerced separation", the Court observed.

The Court further made remarks in its judgment regarding the risks that couples who marry against the wishes of their families face.

“It’s not hard to visualize other pressures brought to two individuals who are otherwise adults and possess free will. This view(in Pandiyan) is not only narrowing an otherwise wide import of statute but is also violative of the right under Article 21 of the Constitution.”

The Court also referred to various Supreme Court precedents that recognized the right to choose a life partner as a fundamental right under Article 21. Declaring the view expressed in Balakrishnan Pandiyan to be erroneous, the Court overruled it.

Advocates may solemnise marriage in their personal capacities and not in professional capacities

The Court further said that the observations made by the High Court concerning the role of Advocates "may not have been warranted". At the same time, it said that some concerns are not entirely unfounded.

"Advocates have many capacities. They are officers of the court. While acting as counsel/advocate, they should not undertake or volunteer to solemnize marriages. However, in their private capacity as friends as relatives, their roles as witnesses cannot be ruled out".

Coming to the facts of the case, the Court had earlier called for a report from the District Legal Services Authority regarding the stand of the woman. The woman gave a statement that she wished to live with the petitioner. Based on this report, the Court allowed the petition and set aside the High Court judgment.

The petitioner was represented by Advocate-on-Record A Velan assisted by Advocate Mrityunjay Pathak.

Case title: Ilvarasan v. Superintendent of Police | SLP(Crl) No. 006534 - / 2023

 Citation : 2023 LiveLaw (SC) 735; INSC 2023 813

Click here to read the judgment